dissenting. The majority result is troublesome in several respects. It finds a duty of care on Erma Fritts’ part owed to the restaurant patrons, when Erma testified she “never dreamed” Merle Fritts would hurt anyone other than herself. It expands the duty owed to include a police officer who was acting in an official capacity. And, lastly, the effect of this decision may well be to force employers to eliminate employees with problem spouses from their employment. Employers will certainly begin to screen potential employees for spousal controversy.
The facts are set out by the majority, although I have added to them. Merle has a history of violent behavior toward Erma and was verbally and physical abusive toward her. On one occasion he threw a beer in Erma’s face and called her “a bunch of names,” and she took refuge in a neighbor’s trailer. She testified that while she was in her neighbor’s trailer, Merle was “marching outside with a gun.” Another time, she said he choked me “real bad, and so I had my neighbors to take me to the doctor.” On still another occasion he pushed her down on a dance floor. She admitted that her husband was dangerous where she was concerned.
On Friday, February 7,1986, Erma filed for divorce against Merle, and the court issued a restraining order on that same date. Erma and Merle, however, spent the night together. The following night, Saturday, February 8,1986, Erma and a female friend visited several clubs, avoiding those where Merle was likely to be. The next morning, Sunday, February 8,1986, was the morning of the shooting.
At about 6:50 a.m. that morning, Erma arrived at her job as front desk clerk at the motel. Merle was waiting for her, and she observed that it “appeared that he was drunk or something was wrong with him.” Merle first told her that she was “pretty this morning,” but then accused her of having been “out with some men” the night before and threatened to pull her out of the motel “by the hair of the head.”
Erma went across the motel lobby and into the adjoining restaurant to get help from Dub Throckmorton, who was leasing the restaurant from the motel owner, appellant S.G. Catlett. According to Throckmorton she asked him to “call the police, that Merle was threatening her.” She also asked Throckmorton, who was a friend of Merle’s, to induce her husband to go to the restaurant for coffee “because I’m afraid he’s going to cause me trouble in here.” When Throckmorton intervened, Merle became belligerent, declaring, “You’re not big enough to take me anywhere.” He looked at Erma and said, “You see her. I’m going to kill her.” This statement, however, did not “upset” Erma because “he had told me before he was going to kill me.” Nevertheless, according to her testimony, she suggested to Throckmorton that perhaps he should “call the law on him.” Throckmorton and Erma talked to Merle for twenty minutes, and Erma pleaded with him to leave. This only made him madder. Finally, they appeared to succeed, and Merle left the motel.
Other witnesses in the adjoining restaurant testified that during the 20 minutes or so of wrangling, Merle used other abusive and profane language. Appellee Fred Stewart, a constable for White County and a regular customer at the restaurant who was having his usual coffee that morning, testified that Merle pointed his finger at Erma and said, “You know I mean what I say. I’ll blow your f-head off.” After making the remark, Stewart said Merle “turned and walked off.” Stewart did not take the comment seriously. He said, “I thought they had a little problem.”
Appellee Steaven Miller also heard the threatening language about blowing Erma’s head off and chose to ignore it.
Throckmorton and Erma watched from the restaurant window as Merle walked to his truck. Throckmorton thought Merle appeared calm as he was leaving. Once he reached his truck, though, Merle opened the door, removed a shotgun, and began walking back toward the restaurant. Throckmorton at that point called on appellee Stewart for help. Stewart then described what happened:
At that time, if I recall right, Dub [Throckmorton] was on the phone. I said, “call the police,” and gave him the number, and he came over by me and I was taking my gun out of my boot, and he said, “Can you help?” And I said, “I’ll try.” We watched the man walk by here and I went out in the lobby here past these gates to stand at the corner right here to stop him before he got into the restaurant . . . . I stood here. I watched this man come in here. When he got about four or five feet from me, I said, “Police officer, drop your gun.” And the next thing I knew I was hearing a noise in my head like a loud banging noise. . . .
As a law enforcement officer in Arkansas, Stewart was authorized to carry a firearm. He testified that he felt a duty to act as a police officer to prevent violence. He further testified that “if you see a felony in progress anywhere you are going to have to take some action.” He understood “somewhat” that he was undertaking a risk and voluntarily did so.
Duty Owed
Our case law is clear that in any analysis of negligence we should answer the following questions:
1. What duty, if any, did Catlett owe to Stewart and Miller?
2. Was that duty breached?
3. Could Catlett have reasonably foreseen that such a breach would cause the injury suffered by Stewart and Miller?
4. Did the negligent act of Catlett cause the injury or was it a substantial factor in the cause of the injury?
Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). In Keck we further said that “what duty is owed is always a question of law and never one for the jury.” 279 Ark. at 298, 652 S.W.2d at 4; citing W. Prosser, Law of Torts, § 45. Questions of foreseeability and causation, however, may be ones of fact, depending on the case. Id. In Keck we found an employment agency negligent for making no check on one of its customers (Joiner) who abducted and raped a potential employee, Mrs. Keck. In analyzing that case we said, “If the agency could not have foreseen any risk in referring Mrs. Keck to Joiner, it was not negligent because negligence cannot be predicted on a failure to anticipate the unforeseen.” 279 Ark. at 299, 652 S.W.2d at 5.
Here we are dealing with the unforeseen and the duty to protect restaurant patrons against the unforeseen. (And though it was not argued on appeal, it should be noted that the restaurant leased by Throckmorton is a separate legal entity from the motel owned by Catlett.) Erma did not owe a duty to Stewart and Miller to protect them against her husband, when she had no inkling that they were in harm’s way until it was too late.
This is not a case where the defendant argued that a particular injury was not foreseen and, accordingly, there should be no liability. See Bergetz v. Repka, 244 Ark. 60, 424 S.W.2d 367 (1968). Rather, it is a case where no one, including Erma and Throckmorton, foresaw the general potential for injury to patrons of the motel or restaurant which resulted from Merle’s presence.
Erma’s history with Merle never suggested that he might be a danger to persons other than herself. She was asked about this repeatedly at trial, so much so in fact that it raised an objection from counsel. In one exchange she said:
Q. You knew also at that time that at your place of employment you had some special responsibility to others, didn’t you, to those who were there doing business?
A. Sir, I never dreamed of him hurting anybody else so, therefore, I didn’t because I never thought about him being, getting anybody else.
Q. Okay, so you never even thought about that?
A. I sure didn’t.
And all of the testimony at trial bore her out. She obviously foresaw no danger to others, but that could, arguably, be a subjective assessment. What confirms the objectivity of the assessment, however, is the fact that Merle’s friend, Dub Throckmorton, who knew him well and who spent twenty minutes with him immediately before the shooting, did not foresee danger to third parties. Otherwise, he would have called the police. And, finally, neither of the appellees — and they had overheard Merle’s abusive talk to Erma — foresaw a problem. Under the circumstances it is difficult to fathom how her personal experience with Merle fostered a duty to restaurant patrons when she never anticipated he would do such a thing and when, according to everyone who testified, he had never acted violently toward other parties before.
Breach of Duty
Moreover, assuming Erma owed a duty to patrons of the restaurant, what more could she have done to satisfy that duty than what she did? She went to Merle’s friend, Throckmorton, and asked that he call the police. She did not call the police herself but that is understandable when an abusive husband was watching her every move. She also asked Throckmorton to give Merle some coffee and try to get him to leave the premises. And she personally pleaded with Merle to leave for 20 minutes, placing herself in a fearful and embarrassing position in the process. She did everything that reasonably could have been expected under any objective standard.
Duty Owed to Police Officer
What precipitated the tragic shooting was the bravery of appellee Stewart. By his own admission Stewart felt a duty to act as a law enforcement officer and was called on to act in that capacity by Throckmorton. He understood to some extent that he was placing himself at risk but voluntarily chose to do so. With this in mind he left the restaurant and went into the motel lobby where he confronted Merle with gun drawn and said: “Police officer — drop your gun.” His actions were completely laudable and commendable.
Catlett took steps to assert a Fireman’s Rule defense. He first asked for a directed verdict at the conclusion of appellees’ case on the basis that by drawing his weapon and placing himself in Merle’s path, Stewart was acting voluntarily as a law enforcement officer, and no duty was therefore owed him. The motion was denied. Catlett’s motion was renewed at close of trial but also denied. Catlett further objected to one of appellees’ requested instructions on the basis that Stewart was acting as a law enforcement officer and “his status as an invitee was severed when he assumed his duty. . . .” The instruction was given anyway by the trial court.
Arkansas has not formally adopted the Fireman’s Rule, which, simply stated, renders public safety officers who enter upon the premises in their official capacities licensees to whom no duty is owed by the owner of the premises other than a duty to refrain from intentional, willful, or wanton misconduct. Prosser
& Keaton on Torts, § 61, p. 429 (5th Ed. 1984). I do not suggest that we generally adopt the Fireman’s Rule today. However, appellees’ primary claim of negligence against Catlett is his employee, Erma, was knowledgeable about Merle’s dangerous propensities, and she failed to call the police herself. It seems inconsistent for one of the appellees, an activated police officer on the premises who intervened on Erma’s behalf, to make this claim of negligence. What we have is a police officer, Fred Stewart, who is shot protecting Erma, arguing that she was negligent for not calling the police herself. This result is highly illogical.
Innkeepers do have a special relationship with their patrons and owe them a duty to exercise reasonable care. Prosser & Keaton on Torts § 61, p. 425 (5th Ed. 1984); Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861 (1906); Lopez v. McDonald, 238 Cal. Rptr. 436, 193 Cal. App. 3d 495;(1987). But where dangers are so highly extraordinary or improbable as to be wholly beyond the range of expectability, the liability of the innkeeper should not attach. See Jones v. Leon, 3 Wash. App. 916, 478 P.2d 778 (1970). Who best would know about the high improbability of what Merle did other than Erma, his wife, and his friend, Throckmorton? High improbability is exactly what we have in this case. Under such circumstances no duty is owed the restaurant patrons. Id.
Moreover, the duty a landowner owes to his invitees is not absolute, and it does not extend to conditions where an unreasonable risk cannot be anticipated. Restatement (Second) Torts § 343A, p. 218; Prosser & Keaton on Torts § 61, pp. 425-427 (5th Ed. 1984).
There is, too, an important public policy consideration here which the majority fails to consider. We are telling employers by this decision that they must examine the private lives of their employees to avoid liability. That places an incredibly heavy burden on restaurant owners who now must make the investigation into potential spousal abuse of their employees and an even heavier burden on the employees themselves who might lose their jobs in the process.
Motion for Directed Verdict
Appellant Catlett moved for a directed verdict at the close of appellees’ case and at the close of his defense as well. The trial court denied the motion. In reviewing a trial court’s decision on directed verdict motions, we have held that we must give the evidence of the prevailing party its strongest probative force in determining whether a jury question exists on the negligence issue. See Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988); Harper v. Mo. Pac. Rd. Co., 229 Ark. 348, 314 S.W.2d 696 (1958). In a subsequent case the Arkansas Court of Appeals has said, “. . . a directed verdict is proper only when the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside.” Prudential Ins. Co. v. Williams, 15 Ark. App. 94, 96-97, 689 S.W.2d 590 (1985). In Williams the focus on appeal was whether there was substantial evidence to support plaintiffs loss of sight independently of cataract surgery. Whether evidence is substantial or not is a question of law. Findley, Adm’x v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980). The court of appeals, in Williams, went on to define substantial evidence as:
\ . . evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.’ Ford on Evidence, Vol. 4 § 549, page 2760. Substantial evidence has also been defined as ‘evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent references.’
15 Ark. App. at 97, 689 S.W.2d at 592, quoting Findley, Adm’x v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980) and Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). The issue presented to the trial court was whether the hemorrhage causing the loss of sight resulted from the surgery or not. The trial court refused to direct a verdict for the defendant, and the court of appeals reversed, concluding that the plaintiffs evidence raised nothing more than suspicion in the jurors’ minds.
The administration of rules of law and the determination of facts upon which there could be no reasonable difference of opinion are matters left to the courts. Prosser & Keaton on Torts § 45, pp. 319-320 (5th Ed. 1984). In three foreign jurisdictions where assaults occurred on a landowner’s premises the appellate courts sustained either a directed verdict or judgment n.o.v. in favor of the defendant landowner. People v. Lodge, 418 N.W.2d 381 (Mich. 1988); Harvey v. Van Aelstyn, 319 N.W.2d 725 (Neb. 1982); Jones v. Leon, 3 Wash. App. 916, 478 P.2d 778 (1970).
The Jones case most closely approximates the facts in this case. A boyfriend (Bird) had slapped his girlfriend (Vicki) in a tavern two weeks before the shooting in question, and the tavern owners knew it. Vicki told Bird that she no longer wished to continue the relationship, and Bird proceeded to get intoxicated. Vicki went to a restaurant where she once worked as a part-time barmaid and told the manager to call the police, if he saw Bird. She also told the manager that Bird had threatened to kill her. Bird entered the restaurant later that evening, saw Vicki dancing with the plaintiff, and after a brief conversation shot the plaintiff. The Washington Court of Appeals affirmed the trial court’s directed verdict and noted that Bird had a violent temper. The court then continued:
However, the term “violent temper” is not precise, but one of degree. We do not believe it can be inferred from this incident that Bird’s temper was so violent and uncontrollable that it was reasonably foreseeable to the respondents that he would use a gun under similar circumstances. There is no evidence, nor inference from evidence, that respondents had knowledge of any propensity of Bird to use a gun.
478 P.2d at 783. The same reasoning should apply to this case.
There was ample proof that Merle was dangerous as far as Erma was concerned but no proof that he was dangerous to others. His shooting appellees was wholly unexpected by Erma and Throckmorton, who knew him best and who visited with him for twenty minutes before the shooting. There is no duty of care where the wholly unexpected is involved. And that is what occurred. Here the evidence introduced to prove Merle’s propensity to harm others does not rise above the level of conjecture and suspicion.
I would reverse on grounds that the trial court erred in failing to direct a verdict in favor of the appellant Catlett. The duty of care owed to appellees by Catlett was simply not established under the facts of this case.
Newbern, J., joins in this dissent.